Personhood Amendment in Mississippi Likely Won’t Ban Abortion

Voters in Mississippi head to the polls today to consider Initiative 26, a statewide personhood amendment that would define unborn children as persons under the law starting at the point of conception. However, prior Supreme Court case law makes it appear the amendment will do nothing to ban — or even limit — abortions.

Much of the debate surrounding the measure has been confined to whether the personhood amendment would ban birth control (it would not) or abortions. While Planned Parenthood has clearly misled Mississippi voters as to whether the measure would ban non-abortifacient birth control, the pro-life supporters of the personhood amendment who have been informing state residents that it will “ban abortion” or “end abortion” are not presenting the full story.

The full text of the amendment reads: “Be it enacted by the People of the State of Mississippi: SECTION 1: Article III of the constitution of the state of Mississippi is hereby amended BY THE ADDITION OF A NEW SECTION TO READ: SECTION 33: Person defined. As used in this Article III of the state constitution, “The term ‘person’ or ‘persons’ shall include every human being from the moment of fertilization, cloning, or the functional equivalent thereof.”

Assuming the amendment is approved and assuming it does not succumb to state legal challenges from those who say the Mississippi Bill of Rights can’t be amended via the initiative method, the personhood amendment will not ban abortions.

Defining human life as beginning at conception or fertilization is not a new concept in the pro-life movement as states have defined human life in such a scientifically accurate manner for decades — including before the infamous 1973 Roe v. Wade decision that invalidated state abortion bans across the country.

The Supreme Court addressed the issue of personhood language in Roe (as Texas had defined human life beginning at conception) and reaffirmed its view as early as 1983, when in Akron v. Akron Center for Reproductive Health, Inc., it ruled again that “a State may not adopt one theory of when life begins to justify its regulation of abortions.”

Subsection (3) requires the physician to inform his patient that “the unborn child is a human life from the moment of conception,” a requirement inconsistent with the Court’s holding in Roe v. Wade that a State may not adopt one theory of when life begins to justify its regulation of abortions. See 410 U.S., at 159 -162.

The high court addressed the issue again in 1989 in the Webster decision. The state of Missouri had approved a statute saying “the life of each human being begins at conception” and “unborn children have protectable interests in life, health, and well-being.” The statute required that all Missouri state laws be interpreted to provide unborn children with rights equal to those enjoyed by other persons.

The United States District Court for the Western District of Missouri struck down that provision and the abortion limits, the United States Court of Appeals for the Eighth Circuit affirmed and ruled they violated Roe.

The Supreme Court then ruled that it did not need to consider the constitutionality of the law’s preamble, defining personhood at conception, as it could not be used to support any abortion laws that conflicted with Roe. Chief Justice William Rehnquist wrote the decision and Justice Anthony Kennedy joined in the opinion. Ultimately, the Supreme Court upheld the personhood language Missouri used decades ago but did not allow it to ban — or even limit — any abortions.

“This Court need not pass on the constitutionality of the Missouri statute’s preamble,” Rehnquist wrote in his decision for the Supreme Court in Webster. He goes on to say that a”a State could not “justify” any abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the State’s view about when life begins. The preamble does not, by its terms, regulate abortions….”

In other words, when the state of Missouri adopted similar language as the Mississippi personhood amendment, the Supreme Court ruled both in 1983 and again in 1989 that such language can’t be used to ban abortion. Further, the Supreme Court made it clear that states can’t even use such language, as Missouri attempted, to justify any sort of pro-life laws that limit or reduce abortions.

Moreover, the Missouri language mandated that state abortion and other laws be interpreted to provide unborn children with “all the rights, privileges and immunities available to other persons, citizens, and residents of this state, subject only to the Constitution of the United States, and decisional interpretations thereof by the United States Supreme Court and specific provisions to the contrary in the statutes and constitution of this state.” That makes the Missouri personhood language apply to state laws banning or limiting abortion — giving teeth to the personhood language to justify abortion limits (though the Supreme Court ruled that was not allowable). The Mississippi personhood language contains no such qualification meaning — even if it is upheld in court somehow as allowable despite Roe, Akron and Webster as controlling decisions — it won’t ban abortions or even limit them in any manner.

In Webster, Rehnquist makes it clear that the personhood amendment is little more than statement of position, a feel good declaration made by a state that sets forth what it believes in terms of the beginning of human life but not something that has any effect on the status of legalized abortion: “This Court has emphasized that Roe implies no limitation on a State’s authority to make a value judgment favoring childbirth over abortion, Maher v. Roe, 432 U.S. 464, 474, and the preamble can be read simply to express that sort of value judgment.”

“The extent to which the preamble’s language might be used to interpret other state statutes or regulations is something that only the state courts can definitively decide, and, until those courts have applied the preamble to restrict appellees’ activities in some concrete way, it is inappropriate for federal courts to address its meaning,” Rehnquist goes on to say. At this point in jurisprudence related to abortion, until and unless the Supreme Court’s makeup is changed to the point that it would be ready to consider overturning Roe, state courts will continue to interpret personhood language within the confines of Roe — thus continuing legalized abortion.

With Justice Anthony Kennedy and Antonin Scalia — both of whom are still on the court — siding with Rehnquist in his opinion, there’s no expectation that the Mississippi personhood amendment would be interpreted in any other way different from the Missouri personhood language the high court considered more than two decades ago.

What then would be the effect of the personhood amendment? Rehnquist lays that out in his Webster decision: “The preamble does not, by its terms, regulate abortions or any other aspect of appellees’ medical practice, and § 1.205.2 can be interpreted to do no more than offer protections to unborn children in tort and probate law, which is permissible under Roe v. Wade, supra, at 161-162.”

Many states have approved laws giving rights to unborn children outside the context of abortion — for example, to inherit property — and Rehnquist makes it clear that the personhood language provides legal justification for such laws, but not for abortion bans or prohibitions.

In an interview with Baptist Press, Clarke Forsythe, senior counsel for Americans United for Life, says his group is neutral on the personhood amendment for these reasons and he highlighted that fact that it is being promoted at a time when the Supreme Court is still pro-abortion and not ready to reverse Roe.

“Some are concerned about that, but I frankly don’t think it’s a direct challenge to Roe,” Forsythe told Baptist Press. “A direct challenge to Roe would be a criminal prohibition on abortion. This is not a criminal prohibition on abortion.”

He said the personhood amendment is not the right legislative vehicle to end abortion, such as the proposed bans on abortion proposed in South Dakota, even if the court were ready to reverse Roe.

“Imagine a chest of drawers, and you’ve got four drawers,” he said. “On the top drawer you’ve got the constitution. This amendment is being put in the top drawer. But the thing that affects abortion is in the bottom drawer. That’s a criminal statute.”

Forsythe is not alone in that position as Mississippi Gov. Haley Barbour, a Republican who is pro-life and voted for the personhood amendment, says it won’t accomplish what its supporters say it will.

“Strategically, there’s some national organizations that think this may mess up trying to get more pro-life policies adopted nationally,” he said.

The National Right to Life Committee also told Baptist Press that it is focused on strategies that would actually end abortion, saying, “National Right to Life Political Action Committee’s strategy and focus for 2012 will be to elect a pro-life president and pro-life majorities in both the U.S. House and U.S. Senate.”

Prominent pro-life attorney James Bopp agrees and told MSNBC ” lower federal courts would be likely to strike down the Mississippi measure, if it were enacted, and that the Supreme Court would likely not review the lower court’s ruling.” As MSNBC continued:

But if the high court did agree to hear the case, Bopp said, there is a “very substantial danger” that a majority of the justices would adopt a stronger basis for finding that there is a fundamental right to abortion than the due process rationale Justice Harry Blackmun used in the landmark 1973 Roe v. Wade decision.

If that were to happen, Bopp said, the current state and federal restrictions on abortion, such as the Hyde amendment banning federal funding of abortions in the Medicaid program, and laws requiring parental notification before a minor get an abortion, would be swept away.

While defining human life beginning at conception or fertilization is a fine, if pro-life advocates truly want to end abortion, that strategy of changing the Supreme Court via changing the presidency and makeup of the Senate is the only avenue to ban abortions and the only objective pro-life advocates should be focusing on over the next 12 months. When the Supreme Court has a majority ready to overturn Roe, then and only then will it be possible to promote abortion bans or Human Life Amendments that have the ability to truly ban abortions.